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ISCR Case 08-04384.a1 — CASE

ISCR Case 08-04384.a1denied

Case Headnote

ISCR Case No. 08-04384.a1

Jun 8, 2009· Hon. Jeffrey D. Billett· appeal

Summary

A 21-year-old web developer was denied a security clearance under Guideline D (Sexual Behavior) and Guideline J (Criminal Conduct). The denial stemmed from a felony conviction for committing a lewd and lascivious act with a 13-year-old girl.

The judge determined that the applicant's actions presented an extreme threat to both public safety and national security. Disqualifying conditions under Adjudicative Guidelines Paragraphs 20 and 24 were raised.

The applicant's status as a registered sex offender until 2024 further contributed to the adverse decision, leading to the denial of the security clearance.

Conditions Referenced

Disqualifying

AG ¶ 20raisedCriminal Conduct
AG ¶ 24raisedSexual Behavior

Key Rule Quoted

“It is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance.”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedOct 10, 2008
Answer filed—
Hearing held—Applicant requested a decision on the written record.
Decision dateJun 8, 2009

Cite For

Disqualifying Conditions Under Guideline D and J Due to Sexual Offenses
Impact of Felony Convictions on Security Clearance Eligibility
The Standard for Granting Security Clearances as Consistent with National Security Interests.

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Appeal at a glance· Full written decision

Affirmed

The appeal involved a denial of security clearance based on the applicant's conviction for a lewd and lascivious act with a minor. The applicant argued that the Judge's findings were not supported by substantial evidence and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error and that the decision was consistent with national security interests.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowLeRoy F. Foreman — denied the clearance

Decided onthe written record

Guidelines belowGuideline DGuideline J

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant argued that certain findings of fact were not supported by substantial evidence.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Judge's material findings of security concern were supported by substantial evidence and that the Judge's decision was not arbitrary or capricious. The Board also noted that any potential error in the Judge's findings was harmless and did not affect the outcome.

Standard of review applied

Substantial-evidence reviewArbitrary-and-capricious reviewNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Jeffrey D. Billett
William S. Fields
James E. Moody

Descriptive structured reading of this decided, public Appeal Board decision — what the case says, not a prediction or advice.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

APPEAL

SYNOPSIS

KEYWORD: Guideline D; Guideline J DIGEST: The Judge found that Applicant had sexual intercourse with a girl he knew to be only 13 years old.. He will be on a sexual offender list until 2024. Adverse decision affirmed. CASENO: 08-04384.a1 DATE: 06/08/2009 DATE: June 8, 2009 In Re: ----- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 08-04384

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On October 10, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline D (Sexual Behavior) and Item 7, State Sexual Offenders and Predators Laws, dated September 16, 2008. This document includes legislative findings about sexual predators. The Judge found that Applicant was convicted of committing a lewd and lascivious act with a minor. Item 6, Applicant’s sex offender registry entry, lists his offense as an attempted lewd and lascivious act with a minor. However, even if the Judge erred on this matter, the error is harmless. See ISCR 01-23362 (App. Bd. Jun. 5, 2006); ISCR Case No. 03-09915 (App. Bd. Dec. 16, 2004); ISCR Case No. 01-11192 (App. Bd. Aug. 26, 2002). Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a decision on the written record. On March 16, 2009, after considering the record, Administrative Judge LeRoy F. Foreman denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether certain of the Judge’s findings of fact are supported by substantial record evidence and whether the Judge’s adverse decision is arbitrary, capricious, or contrary to law. Finding no harmful error, we affirm. The Judge made the following pertinent findings of fact: Applicant is a web developer for a federal contractor. He has never held a security clearance. When he was 21 years old, Applicant began chatting on the internet with a female whom he believed to be 17 or 18 years old. The on-line conversations became sexually explicit, and soon they agreed to meet at the girl’s home. During the meeting, Applicant discovered that the girl was 13 years old. Nevertheless, he had sexual intercourse with her in her bedroom. Subsequently, they chatted on line about once a month. They met at a high school football game, walked to a nearby wooded area, and had sexual intercourse once again. The girl’s mother discovered the contents of Applicant’s on-line chats and reported Applicant to the sheriff. Applicant was arrested and charged with “committing a lewd and lascivious act in the presence of a child under the age of 16.” This was a felony offense. Applicant pled nolo contendere to this charge and was found guilty. The court sentenced him to 3 years probation, two years of community control, and a fine. Applicant was also required to register as a sex offender. He will remain on the sex offender list until 2024. Sex offenders who prey on children are “sexual predators,” they present an “extreme threat to the public safety,” and are “extremely likely to repeat their offenses.” The Board concludes that the Judge’s material findings of security concern are supported by substantial record evidence. See Directive ¶ E3.1.32.1. (Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.”) In support of his appeal Applicant has submitted new evidence, including character references and a copy of the conviction in his case. The Board cannot consider these documents. See Directive ¶ E3.1.29. (“No new evidence shall be received or considered by the Appeal Board”). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for the decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The Judge’s decision that “it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance” is sustainable on this record. Decision at 8. See also Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security’”).

ORDER

The Judge’s adverse security clearance decision is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board